M/s. Sherdan Games Park & Holidays P Ltd., CHENNAI V. ACIT, CHENNAI

CO 103/CHNY/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0599 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 2 month(s) 19 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-02-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 28-11-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: CHNY; CHNY CHNY
• Keywords: Reasonable cause; Competent authority; Condonation of delay
• Section: 13

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , A B ENCH, CHENNAI , . , % BEFORE SHRI MAHAVIR SINGH, VICE-PRESIDENT AND SHRI G.MANJUNATHA, ACCOUNTANT MEMBER S. NO ITA NO. ASSTT YEAR ASSESSEE /DEPARTMENT RESPONDENT APPELLANT BY RESPONDENT BY 1 - 3 1679/CHNY/2019 1680/CHNY/2019 & 1681/CHNY/2019 2011-12 2011-12 2011-12 1.MR.SYED MUHAMMAD ACKIYL 27, APPA PILLAI STREET, KAYALPATNAM, TIRUCHENDUR TALUK PAN : ARRPS 6354B 2. MR SHEIKH ABDUL CADER SUBUKI, 27, APPA PILLAI STREET, KAYALPATNAM, TIRUCHENDUR TALUK PAN:ARRPS 6349E 3.MR.S.SHAHUL HAMEED 27, APPA PILLAI STREET, KAYALPATNAM, TIRUCHENDUR TALUK PAN : AAEPH 1209A THE INCOME TAX OFFICER, WARD-4 TUTICORIN MR .ANANDD BABUNATH, FCA MR G.CHANDRABABU, ADDL.CIT 4-5 1739/CHNY/2019 2785/CHNY/2019 2009-10 2010-11 SMT.MANISHA BETALA C/O.MR.T.N.SEETHARAM AN, ADVOCATE, 384, LLOYDS ROAD, CHENNAI- 86. PAN: AAFPB 8055K THE INCOME TAX OFFICER, NON-CORPORATE WARD-10(3) CHENNAI. MR.T.N. SEETHARAMAN, ADVOCATE MR G.CHANDRABABU, ADDL.CIT 6-7 2788/CHNY/2019 1740/CHNY/2019 2010-11 2009-10 M/S.KAMLESH KUMAR BETALA & SONS (HUF) C/O.MR.T.N.SEETHARAM AN, ADVOCATE, 384, LLOYDS ROAD, CHENNAI- 86. PAN:AACHK 7609H THE INCOME TAX OFFICER, NON-CORPORATE WARD-10(2) CHENNAI. MR.T.N. SEETHARAMAN, ADVOCATE MR G.CHANDRABABU, ADDL.CIT 8-9 2786 & 2787/CHNY/2019 2009-10 2010-11 MR. KAMLESH KUMAR BETALA C/O.MR.T.N.SEETHARAM AN, ADVOCATE, 384, LLOYDS ROAD, CHENNAI- 86. PAN:AAIPK 5727G THE INCOME TAX OFFICER, NON-CORPORATE WARD-10(2) CHENNAI. MR.T.N. SEETHARAMAN, ADVOCATE MR G.CHANDRABABU, ADDL.CIT 10- 13 1923 TO 1926/CHNY/2018 1995-96 1997-98 1998-99 1999-00 SMT. R.SAROJA DEVI 14, KRISHNAN KOVIL 2 ND STREET, MANAMBUCHAVADI, THANJAVUR. PAN: AOXPS 6970A THE INCOME TAX OFFICER, WARD-I(1) THANJAVUR. NONE MR G.CHANDRABABU, ADDL.CIT 14- 15 2678/CHNY/2019 & 2006-07 ASSISTANT COMMISSIONER OF M/S. SHERDAN GAMES PARK & MR G.CHANDRABABU, NONE 2 ITA NOS.1679 TO 1681/CHNY/2019 & 15 ORS. INCOME TAX, CORPORATE CIRCLE-6(1) CHENNAI. HOLIDAYS PVT.LTD. 22, II LINE BEACH, I FLOOR CHENNAI-1. PAN: AAECS 5095E ADDL.CIT C.O.NO.103/CHNY/ 2019 2006-07 M/S. SHERDAN GAMES PARK & HOLIDAYS PVT.LTD. 22, II LINE BEACH, I FLOOR CHENNAI-1. PAN: AAECS 5095E ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-6(1) CHENNAI. 16 ITA NO.73/CHNY/2020 2011-12 M/S. S.M.GARMENTS PVT.LTD. A-24/25, SVK TOWER,4 TH FLOOR, THIRU VI KA INDUSTRIAL ESTATE GUINDY,CHENNAI-32. PAN: AAACS 8806P ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE- I(4) CHENNAI-34 NONE MR G.CHANDRABABU, ADDL.CIT 17- 18 1148/CHNY/2019 & 2015-16 M/S. MACMILLAN PUBLISHERS INDIA PVT.LTD 21, PATULLOS ROAD, CHENNAI-2. PAN: AAFCM 5564R ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-4(1) CHENNAI. NONE MR G.CHANDRABABU, ADDL.CIT 1240/CHNY/2019 2015-16 ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-4(1) CHENNAI. M/S. MACMILLAN PUBLISHERS INDIA PVT.LTD 21, PATULLOS ROAD, CHENNAI-2. PAN: AAFCM 5564R /DATE OF HEARING : 16.02.2021 /DATE OF PRONOUNCEMENT : 16.02.2021 / O R D E R PER BENCH: THIS BUNCH OF 18 APPEALS FILED BY DIFFERENT ASSE SSEES/REVENUE ARE DIRECTED AGAINST ORDERS OF LEARNED COMMISSION ER OF INCOME TAX (APPEALS), MADURAI /CHENNAI/ TIRUCHIRAPPALLI OF EVEN DATED 19.02.2019 /25.03.2019 / 24.06.2019 /22.03.2019 / 30.03.2017 / 3 ITA NOS.1679 TO 1681/CHNY/2019 & 15 ORS. 28.06.2019 / 24.01.2019 / 11.10.2019 /24.01.2019 FO R RESPECTIVE ASSESSMENT YEARS. 2. WE FIND THAT APPEALS FILED BY ASSESSEES IN ITA NOS.1679 & 1681/CHNY/2019 AT SR.NO.1 AND 3 AND ITA NOS.1923 TO 1926/CHNY/2018 AT SR.NO.10 TO 13 ARE TIME BARRED BY LIMITATION FOR WHICH NECESSARY PETITION FOR CONDONATION OF DELA Y ALONG WITH AFFIDAVIT EXPLAINING THE REASONS FOR THE DELAY H AVE BEEN FILED. THE LEARNED COUNSEL SUBMITTED THAT ASSESSEES COULD NOT FILE APPEALS WITHIN THE TIME ALLOWED UNDER THE ACT, THEREFORE D ELAY MAY BE CONDONED. HAVING HEARD BOTH SIDES AND CONSIDERED TH E PETITIONS FILED BY THE ASSESSEES FOR CONDONATION OF DELAY, W E ARE OF THE CONSIDERED VIEW THAT REASONS GIVEN BY ASSESSEES FO R NOT FILING THE APPEALS WITHIN THE TIME ALLOWED UNDER THE ACT COM ES UNDER REASONABLE CAUSE AS PROVIDED UNDER THE ACT FOR CO NDONATION OF DELAY AND HENCE, DELAY IN FILING OF ABOVE APPEALS ARE CONDONED AND APPEALS FILED BY THE ASSESSEES ARE ADMITTED FO R ADJUDICATION. 3. WE HAVE HEARD THE COUNSELS FOR THE ASSESSEES AN D THE LD. DR AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE TIME OF HEARING, LEARNED COUNSELS FOR THE ASSESSEES HAV E MADE A STATEMENT AT BAR THAT THE ASSESSEES WANTS TO UTI LIZE THE DIRECT 4 ITA NOS.1679 TO 1681/CHNY/2019 & 15 ORS. TAXES VIVAD SE VISHWAS SCHEME, 2020 TO SETTLE PEN DING DISPUTE RELATING TO DIRECT TAXES AND IN THIS REGARD SOME OF ASSESSEES HAVE FILED FORM NO 1 AND 2 AND AWAITING FORM NO. 3 FROM THE DESIGNATED AUTHORITY. IN SOME CASES, THE ASSESSEES HAVE RECEI VED FORM NO. 3 FROM THE DESIGNATED AUTHORITY AND IN SOME CASES, TH E ASSESSEE HAVE FILED LETTER AND EXPRESSED THEIR WILLINGNESS T O FILE FORM NO. 1 AND 2 BEFORE THE DESIGNATED AUTHORITY. 4. THE BENCH HAS CONSIDERED RIVAL CONTENTIONS OF BO TH SIDES AND AFTER HEARING BOTH PARTIES, WE FOUND THAT THE GOV ERNMENT OF INDIA HAS ANNOUNCED IN THE BUDGET, 2020, A DIRECT TAXES VIVAD SE VISHWAS SCHEME, 2020 TO SETTLE PENDING DISPUTE RELATING TO DIRECT TAXES AT VARIOUS APPELLATE FORUMS INCLUDI NG THE FIRST APPELLATE AUTHORITY, TRIBUNAL, HIGH COURT AND SU PREME COURT. IN THIS REGARD, THE SCHEME HAS BEEN NOTIFIED ON 17 TH MARCH, 2020 AND BECAME DIRECT TAXES VIVAD SE VISHWAS ACT, 2020. A S PER THE SAID SCHEME, ASSESSEES ARE ALLOWED TO SETTLE DIRECT TAX DISPUTE IN A MANNER AND PROCEDURE PRESCRIBED THEREIN BY FILING N ECESSARY DECLARATION AND UNDERTAKING. THE SCHEME HAS ALSO SP ECIFIED THE AMOUNT OF TAXES, INTEREST, AND PENALTY, IF ANY PAYA BLE UNDER THE ACT. IF AN ASSESSEE FILED A DECLARATION AND PAY SPECI FIED TAXES AS PER 5 ITA NOS.1679 TO 1681/CHNY/2019 & 15 ORS. THE SCHEME AND WITHDRAW THE APPEAL PENDING BEFOR E THE APPELLATE AUTHORITIES, THE DESIGNATED AUTHORITY SHALL PASS AN ORDER IN FORM 5 CONFIRMING PAYMENT MADE UNDER THE SCHEME AND GRA NT IMMUNITY FROM PENALTY AND PROSECUTION. 5. IN THESE PRESENT APPEALS, SOME ASSESSEES HAVE F ILED DECLARATION IN FORM NO.1 ALONG WITH UNDERTAKING WAI VING RIGHTS FOR ANY REMEDY IN FORM NO. 2 TO THE DESIGNATED AUTHORIT Y AND HAS ALSO RECEIVED FORM 3. IN SOME CASES, FORM NO 1 AND 2 H AS BEEN FILED AND AWAITING FORM NO. 3 FROM THE DESIGNATED AUTHORI TY AND IN SOME CASES, THE ASSESSEES HAVE EXPRESSED THEIR WILLINGN ESS TO FILE FORM NO. 1 AND 2 AND SETTLE THEIR DISPUTE UNDER THE SCHE ME. THEREFORE, ONCE THE ASSESSEES INTEND TO FILE A DECLARATION IN FORM NO.1 ALONG WITH UNDERTAKING AND EXPRESSED THEIR WILLINGNESS TO SETTLE PENDING DISPUTES REGARDING DIRECT TAXES, THEN THERE IS NO P OINT IN KEEPING APPEAL FILED BY THE ASSESSEES. WE, FURTHER NOTED THAT RECENTLY THE HONBLE JURISDICTIONAL HIGH COURT OF MADRAS HAS C ONSIDERED AN IDENTICAL APPLICATION FILED BY AN ASSESSEE IN THE CASE OF M/S. NANNUSAMY MOHAN (HUF) VS. ACIT IN T.C.A NO.372 OF 2 020 FOR AVAILING THE BENEFIT OF VIVAD SE VISHWAS SCHEME, 2020, WHERE THE HONBLE HIGH COURT HAS DISMISSED THE APPEAL FILED BY THE PETITIONER 6 ITA NOS.1679 TO 1681/CHNY/2019 & 15 ORS. AS WITHDRAWN, BUT ALLOWED LIBERTY TO THE ASSESSEE TO RESTORE THE APPEAL IN THE EVENT THE DESIGNATED AUTHORITY FOR ANY REASON REJECT APPLICATION FILED BY THE ASSESSEE UNDER SECTION 4 OF THE ACT. THE RELEVANT PORTIONS OF THE OBSERVATIONS OF THE HONBL E HIGH COURT OF MADRAS VIDE ORDER DATED 16.10.2020 ARE EXTRACTED AS UNDER:- 2. WE HAVE HEARD MR.M.P.SENTHIL KUMAR, LEARNED C OUNSEL APPEARING FOR THE APPELLANT/ASSESSEE AND MR.T.R. SENTHIL KUMAR, LEARNED SENIOR STANDING COUNSEL AND MS. K.G.USHA RANI, LEARNED COUNSEL FOR THE RESPONDENT/REVENUE. 3. THE LEARNED COUNSEL FOR THE APPELLANT / ASSESSEE , ON INSTRUCTIONS, SUBMITTED THAT THE APPELLANT / ASSESS EE INTENDS TO AVAIL THE BENEFIT OF VIVAD SE VISHWAS SCHEME ( VVS SCHEME' FOR BREVITY) AND IN THIS REGARD, THE ASSESSEE IS TA KING STEPS TO FILE THE APPLICATION / DECLARATION IN FORM NO. 1. 4. IT MAY NOT BE NECESSARY FOR THIS COURT TO DECIDE THE SUBSTANTIAL QUESTIONS OF LAW FRAMED FOR CONSIDERATI ON ON ACCOUNT OF CERTAIN SUBSEQUENT DEVELOPMENTS. THE GOV ERNMENT OF INDIA ENACTED THE DIRECT TAX VIVAD SE VISHWAS AC T, 2020 (ACT 3 OF 2020) TO PROVIDE FOR RESOLUTION OF DISPUTED TA X AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO. THE ACT OF THE PARLIAMENT RECEIVED THE ASSENT OF THE PRESIDENT ON 17TH MARCH 2020 AND PUBLISHED IN THE GAZETTE OF INDIA ON 17TH MARCH 2020. 5. IN TERMS OF THE SAID ACT, THE ASSESSEE HAS BEEN GIVEN AN OPTION TO PUT AN END TO THE TAX DISPUTES, WHICH MAY BE PENDING AT DIFFERENT LEVELS EITHER BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL OR BEFORE THE HIGH COURT OR BEF ORE THE HON'BLE SUPREME COURT OF INDIA. UNDER SECTION 2(J) 'DISPUTED TAX' HAS BEEN DEFINED. IN TERMS OF SECTION 3, WHERE A DECLARANT MEANS A PERSON, WHO FILES A DECLARATION UNDER SECTI ON 4 ON OR BEFORE THE LAST DATE FILES A DECLARATION TO THE DES IGNATED AUTHORITY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4 IN R ESPECT OF TAX ARREARS, THEN, NOTWITHSTANDING ANYTHING CONTAINED I N THE INCOME TAX ACT OR ANY OTHER LAW FOR THE TIME BEING IN FORC E, THE AMOUNT PAYABLE BY THE DECLARANT SHALL BE DETERMINED IN TER MS OF SECTION 3(A-C) THEREUNDER. 7 ITA NOS.1679 TO 1681/CHNY/2019 & 15 ORS. 6. THE FIRST PROVISO TO SECTION 3 STATES THAT IN C ASE WHERE AN APPEAL OR WRIT PETITION OR SPECIAL LEAVE PETITION I S FILED BY THE INCOME TAX AUTHORITY ON ANY ISSUE BEFORE THE APPELL ATE FORUM, THE AMOUNT PAYABLE SHALL BE ONE-HALF OF THE AMOUNT IN THE TABLE STIPULATED IN SECTION 3 CALCULATED ON SUCH ISSUE, I N SUCH A MANNER AS MAY BE PRESCRIBED. THE SECOND PROVISO DEA LS WITH THE CASES, WHERE THE MATTER IS BEFORE THE COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RESOLUTION PANEL. THE THIRD PROV ISO DEALS WITH CASES, WHERE THE ISSUE IS PENDING BEFORE THE INCOME TAX APPELLATE TRIBUNAL. THE FILING OF THE DECLARATION IS AS PER SECTION 4 OF THE ACT AND THE PARTICULARS TO BE FURNISHED AR E ALSO MENTIONED IN THE SUB SECTIONS OF SECTION 4. SECTION 5 OF THE ACT DEALS WITH THE TIME AND MANNER OF THE PAYMENT AND S ECTION 6 DEALS WITH IMMUNITY FROM INITIATION OF PROCEEDINGS IN RESPECT OF OFFENCE AND IMPOSITION OF PENALTY IN CERTAIN CASES. SECTION 9 OF THE ACT DEALS WITH CASES, WHERE THE ACT 3 OF 2020 W ILL NOT BE APPLICABLE. 7. AS OBSERVED, THE ASSESSEE IS GIVEN LIBERTY TO RE STORE THIS APPEAL IN THE EVENT THE ULTIMATE DECISION TO BE TAK EN ON THE DECLARATION TO BE FILED BY THE ASSESSEE UNDER SECTI ON 4 OF THE SAID ACT IS NOT IN FAVOUR OF THE ASSESSEE. IF SUCH A PRAYER IS MADE, THE REGISTRY SHALL ENTERTAIN THE PRAYER WITHO UT INSISTING UPON ANY APPLICATION TO BE FILED FOR CONDONATION OF DELAY IN RESTORATION OF THE APPEAL AND ON SUCH REQUEST MA DE BY THE ASSESSEE BY FILING A MISCELLANEOUS PETITION FOR RES TORATION, THE REGISTRY SHALL PLACE SUCH PETITION BEFORE THE DIVIS ION BENCH FOR ORDERS. 8. IN THE LIGHT OF THE ABOVE, WE DIRECT THE APPE LLANT / ASSESSEE TO FILE THE FORM NO.1 ON OR BEFORE 20.11.2020 AND T HE COMPETENT AUTHORITY SHALL PROCESS THE APPLICATION / DECLARATI ON IN ACCORDANCE WITH THE ACT AND PASS APPROPRIATE ORDERS AS EXPEDIT IOUSLY AS POSSIBLE PREFERABLY WITHIN A PERIOD OF SIX (6) WEEK S FROM THE DATE ON WHICH THE DECLARATION IS FILED IN THE PROPER FOR M. 6. IN THE LIGHT OF THE ABOVE DECISION OF THE HONBL E HIGH COURT OF MADRAS, AND BY TAKING NOTE OF THE FACT THAT SOME ASSESSEES HAVE ALREADY FILED DECLARATION IN FORM NO.1 ALONG WITH FORM NO.2 TO THE DESIGNATED AUTHORITY AND RECEIVED FORM 3 AND SOM E ASSESSEES 8 ITA NOS.1679 TO 1681/CHNY/2019 & 15 ORS. HAD ALREADY FILED FORM NO. 1 & 2 AND AWAITING FORM NO. 3 FROM THE DESIGNATED AUTHORITY AND ALSO THE FACT THAT REMAINI NG ASSESSEES ARE WILLING TO FILE FORM NO. 1 AND 2 WITHIN THE DUE DAT E PRESCRIBED FOR THIS PURPOSE, WE DISMISS THE APPEALS FILED BY THE ASSES SEES AS WITHDRAWN. HOWEVER, A LIBERTY IS GIVEN TO THE ASSES SEES TO RESTORE THE APPEALS, IN THE EVENT OF THE DESIGNATED AUTH ORITY, FOR ANY REASON REJECT THE APPLICATION FILED BY THE ASSESSEE UNDER SECTION 4 OF THE SAID ACT. WE, FURTHER MAKE IT CLEAR THAT IN A CASES WHERE THE APPEAL IS FILED BY THE REVENUE AND THE ASSESSEES H AVE FOR ANY REASON OPTED OUT FROM THE SCHEME OR THE APPLICANTS UNDER THE SCHEME MISREPRESENTS ANY FACTS WHICH RESULTED IN RE JECTION OF APPLICATION FILED UNDER THE SCHEME, THEN THE PROVIS IONS OF SECTION 4(6) OF THE ACT, SHALL BE APPLICABLE TO ALL APPEALS AND IN SUCH CASES, ALL THE PROCEEDINGS AND CLAIMS WHICH WERE WITHDRAWN UNDER SECTION 4 AND ALL THE CONSEQUENCES UNDER THE INCOME-TAX ACT AGAINST THE DECLARANT SHALL BE DEEMED TO HAVE BEEN REVIVED. WE, FURTHER MAKE IT CLEAR THAT THE ASSESSEES SHOULD PROMPTLY INFORM TH E ASSESSING OFFICER ABOUT THEIR DECISION TO OPT OUT OF THE SCHE ME OR REJECTION OF APPLICATION BY THE DESIGNATED AUTHORITY TO THE ASSE SSING OFFICER, SO AS TO ENABLE TO FILE MISCELLANEOUS APPLICATION TO R ESTORE THE APPEAL. 9 ITA NOS.1679 TO 1681/CHNY/2019 & 15 ORS. 7. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSE SSEE AS WELL AS THE REVENUE ARE DISMISSED AS WITHDRAWN. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH FEBRUARY, 2021 SD/- SD/- ( ) ( . ) (MAHAVIR SINGH) (G. MANJUNATHA ) / VICE-PRESIDENT / ACCOUNTANT MEMBER /CHENNAI, /DATED 16 TH FEBR UARY, 2021 DS ! $! /COPY TO: 1. APPELLANT 2. RESPONDENT 3. % () /CIT(A) 4. % /CIT 5. ! + /DR 6. . /GF .